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Monday, January 30, 2017

Section 149 of IPC. - common object of the unlawful assembly= It is trite law that the common object of the unlawful assembly has to be inferred from the membership, the weapons used and the nature of the injuries as well as other surrounding circumstances. Intention of members of unlawful assembly can be gathered by nature, number and location of injuries inflicted. In the instant case, repeated gun shots fired by Ram Chandra Sah on the person of deceased Ram Udgar Sah, and the injuries caused by lathis by other accused persons on the complainant and his second brother on their heads, clearly demonstrate the objective to cause murder of these persons. We, thus, do not find merit in this appeal which is, accordingly, dismissed.

A.K. SIKRI, J.
The case of the prosecution, which has been successfully
established before the trial court as well as the High Court, is as
follows:
On 27.06.1983, a fardbayan was given by the informant
Yogendra Narayan Sah alleging that three days ago, the cattle of Ram
Chandra Sah, accused No. 5 herein (sole accused in Criminal Appeal No. 285
of 1988 before the High Court) grazed the paddy field of the informant,
which incident was brought to the knowledge of the villagers by the
informant. It was further alleged that on 27.06.1983, at about 9 am, he
showed grazed field to the Panches in the presence of accused No. 5 Ram
Chandra Sah. The Panches advised them not to get involved in an
altercation. It was further alleged that while the Panches were busy
inspecting the field, accused No. 2 Sita Ram Sah inflicted lathi blow on
the left leg and thigh of the informant's brother, Bauku Sah. The Panches
intervened and assured that the matter will be resolved shortly.
Further case of the prosecution is that the informant and
his brother returned to their house, whereas Ram Chandra Sah and Sita Ram
Sah rushed to their house. However, no sooner did the informant reached
his house and was standing south-west of it, all the accused persons as
well as one Sukhdeo Sah (since deceased), father of accused Nos.4 and 5,
variously armed arrived there. It was further alleged by the informant
that accused No.5 was armed with gun and others were armed with lathi.
Soon thereafter, Sukhdeo Sah and accused No.1 exhorted other accused to
assault, whereupon accused No.5 fired two gunshots hitting informant's
brother Ram Udgar Sah just at his darwaja (door of the house), thereby
causing his death instantaneously on the spot. The informant alleged that
his brother Ram Udgar Sah sustained pellet wounds in his chest, neck and
mouth. The other accused assaulted the informant with lathi as a result of
which the informant sustained injuries on the right side of the head and
right hand. The accused persons also assaulted the brother of the
informant, Uday Chandra Sah with lathi, on account of which he too
sustained injuries on his head and fell on the ground. Uday Chandra Sah
was then taken to the hospital for treatment. It was further alleged that
the accused persons fled away when the informant raised alarm and witnesses
Ram Swaroop Yadav, Kapu Yadav, Sadhu Sah (PW-6), Dhodhai Sah (PW-7), Bauku
Sah (PW-2) and others reached the place of occurrence. The informant
alleged that the accused persons herein committed the offence because the
informant had chastised them for damaging his crops. On the basis of the
aforesaid fardbayan, a formal FIR was drawn for offences under Sections
147, 148, 149, 307, 302, 325, 332 of the Indian Penal Code, 1860 (for short
the 'IPC') and Sections 25A/26 of Arms Act, 1959 being Mahishi P.S. Case
No. 33 of 1983 on 27.06.1983 at 6 pm. On 28.06.1983, Dr. J. Lal (PW-13)
held postmortem on the body of the deceased. It was recorded in the
postmortem report that on opening the chest, the upper lobes of both the
lungs were found torn with free blood in both sides of the chest cavity.
The injury was anti mortem, fatal and caused by gun shot.

2. After investigation, the police submitted final chargesheet
implicating all five persons named in the FIR, as accused. The trial court
framed the charges against them under the aforesaid provisions. To prove
these charges, the prosecution examined 15 witnesses altogether. Out of
the aforesaid 15 witnesses, Uday Chandra Sah (PW-1), Bauku Sah (PW-2), Anar
Devi (PW-3), wife of deceased Ram Udgar Sah, Parvati Devi (PW-4), mother of
the deceased, Ful Kumari (PW-8) and the informant Yogendra Narayan Sah (PW-
10) were eye-witnesses of the occurrence. One of the injured, Sabo Devi
(PW-9) did not support the prosecution case and was declared hostile.
Sadhu Sah (PW-6) and Dhodhai Sah (PW-7), both village Panches have not
supported the occurrence. They denied to have seen the actual commission
of occurrence and were declared hostile. Dr. P.K. Jha (PW-11) examined the
injured persons, namely, Uday Chandra Sah (PW-1), Bauku Sah (PW-2), Ful
Kumari (PW-8), Sabo Devi (PW-9) at Maheshi Hospital on the day of
occurrence. Jugeshwar Singh (PW-12) is the Investigating Officer of this
case. Dr. J. Lal (PW-13), Civil Assistant Surgeon, Sadar Hospital,
Supaul held postmortem on the dead body of the deceased. J.K. Mishra (PW-
14) and Chotelal Yadav (PW-15) are formal witnesses.

The defence version of the appellants before the trial court was that they
have been falsely implicated in the P.S. Case No.33 of 1983 as they had
lodged a complaint case against the prosecution party bearing No.338(C) of
1983 for an occurrence of same date under Sections 147, 148, 149, 323, 324,
352 and 380 of the IPC filed against the prosecution party wherein
cognizance has been taken. As a matter of fact, accused Ram Chander Sah
took the plea of alibi saying that he was being treated for Jaundice by Dr.
J.K. Thakur, at Laheriasarai between 24.06.1983 to 10.07.1983 and therefore
on the day of occurrence, he was not present in the village.

On defence side also, eight witnesses were examined. These witnesses
included one Dr. Gajendra Prasad Thakur (DW-7), a medical practitioner of
Laheriasarai. After the trial was over, the learned Additional Sessions
Judge after analysing the evidence and material produced before him came to
the conclusion that charges against the accused persons had been
satisfactorily proved by the prosecution. Ram Chandra Sah was sentenced to
undergo rigorous imprisonment for life for the offence punishable under
Section 302 IPC and rest of the accused persons were also sentenced to
undergo rigorous imprisonment for life for the offence punishable under
Section 302/109 IPC.

Against the aforesaid conviction, these accused persons had preferred two
criminal appeals which were heard together by the High Court and have
resulted in dismissal, since the High Court has affirmed the conviction and
sentence recorded by the trial court.

Two special leave petitions were filed against the judgment of the High
Court. Four accused filed one petition and Ram Chandra Sah filed another
special leave petition. On 16.11.2009, while notice was issued in the
special leave petition filed by the four accused persons, the petition of
Ram Chandra Sah was dismissed in limine. In this manner, insofar as
conviction of Ram Chandra Sah is concerned, that has attained finality.
Leave was granted in the other special leave petition on 13.05.2010 which
was converted into the instant appeal i.e. Criminal Appeal No. 1143 of
2010. During the pendency of this appeal, appellant Nos.2 and 4 i.e. Sita
Ram Sah and Jagdish Sah have passed away and, therefore, appeal qua them
stood abated. In these circumstances, we heard the appeal of the other two
appellants, namely, Ganga Ram Sah and Pitambar Sah.

Mr. Nagendra Rai, learned senior counsel appearing for these appellants,
submitted that allegation against Ganga Ram Sah was that he had given
orders and exhorted others to assault whereupon Ram Chandra Sah shot at
Uday Chandra Sah. This was the only role attributed to Ganga Ram Sah but
the same was not proved inasmuch as four eye-witnesses, namely, PW-3, PW-
4, PW-8 and PW-9 did not make any such assertions in their depositions.
Insofar as appellant No. 3 Pitambar Sah is concerned, Mr. Rai has submitted
that no role is attributed to him in the FIR and because of previous
animosity between the parties, he had been falsely implicated.

We are not convinced with the aforesaid arguments. It may be mentioned
that the FIR was registered on the basis of fardbayan given by the
informant Yogendra Narayan Sah immediately after the incident. There is no
time lag between the incident and the FIR. In the said FIR, both appellant
Nos. 1 and 3 are specifically named. Insofar as appellant No.1 is
concerned, specific allegation is made in the FIR that it was the
exhortation of appellant No.1 which led to the said assault. Accused Ram
Chandra Sah fired two gun shots hitting Ram Udgar Sah (brother of the
informant) which caused instant death. Two other eye-witnesses, namely, PW-
1 and PW-2 have also specifically given the statement to this effect,
thereby supporting the version of the prosecution. These witnesses were
cross-examined at length but their testimony could not be shaken. Presence
of Ganga Ram Sah at the scene of occurrence has not been denied. The role
attributed to him, therefore, stands proved, as rightly held by the trial
court as well as the High Court.

It has to be borne in mind that all these persons are convicted under
Section 149 of IPC as well. It has also to be borne in mind that appellant
Nos. 1 to 4 are closely related. In fact, appellant No. 4 Jagdish Sah
(since dead) was father of the other three appellants, namely, Ganga Ram
Sah, Sita Ram Sah (since dead) and Pitambar Sah. The reason for causing
murder of one person and injuring other persons, all of whom were related
and belonged to the rival group, is obvious as stated in the FIR itself. A
dispute had arisen between the two groups three days before the date of
incident in question, which incident was brought to the knowledge of the
villagers by the informant and Panches had advised both the groups not to
involve in any altercation. It is the specific case of the prosecution
that while the Panches were busy inspecting the field, Sita Ram Sah
inflicted lathi blow on the left leg and thigh of Bauku Sah (brother of the
informant). The matter could be resolved with the intervention of Panches.
However, when informant and his brother returned to their house, convicts
Ram Chandra Sah and Sita Ram Sah along with four others came there, armed
with weapons. Ram Chandra Sah was holding a gun whereas other accused
persons were carrying lathis. At that stage, appellant No.1 Ganga Ram Sah
exhorted other appellants to charge the members of the other group. It,
thus, becomes clear that all these appellants had come with clear motive in
mind to bodily harm the members of the informant's family and with common
objective. A calculated action was spearheaded. All the accused persons
were very well aware of the consequence of this action. The Courts below,
therefore, rightly held that ingredients for the offence under Section 149
also stood proved. In that event, both these appellants are also equally
liable for the consequence of causing murder of Ram Udgar Sah and attempt
to murder other victims.

We may mention here at this stage that Mr. Nagendra Rai, learned senior
counsel appearing for the appellants, had made a fervent plea to the effect
that offence under Section 149 IPC was not proved inasmuch as there was no
clear finding recorded by the courts below regarding the nature of common
object and that the object was unlawful. For this purpose, he referred to
the judgment of this Court in Bhudeo Mandal & Ors. v. State of Bihar[1]
wherein the Court has held that before convicting accused with the aid of
Section 149, the Court must give clear findings regarding the nature of
common object and that the object was unlawful and that in the absence of
such findings, offence under Section 149 IPC cannot be held to be proved.
In that case, the Court held that mere fact that the accused persons were
armed would not be sufficient to prove the common object. In the instant
case, however, as already described above, there is a clear finding about
the common object and calculated/concerted action in furtherance of the
said object.

Mr. Rai also referred to the judgment in the case of Thakore Dolji Vanvirji
& Ors. v. State of Gujarat[2] and specifically read out the following
discussion contained therein:
“3. …Now the question is whether all the accused would constructively be
liable for an offence of murder by virtue of Section 149 IPC. So far A-1 is
concerned, it is the consistent version of all the eyewitnesses that he
dealt a fatal blow on the head with a sword and the medical evidence shows
that there was a fracture of skull and the blow must have been very
forceful because even the brain was injured. Therefore, he was directly
responsible for the death of the deceased and the High Court has rightly
convicted him under Section 302 IPC. Now coming to the rest of the accused,
all the eyewitnesses have made an omnibus allegation against them. Even A-
2, according to the eyewitnesses, gave only one blow and that the remaining
accused gave stick blows. All these injuries were not serious and were
simple. The injury attributed to A-2 was on the cheek and the doctor did
not say that it caused any damage. So it must also be held to be a simple
injury. Then we find only a bruise and an abrasion on the right arm and
some bruises on the back. These injuries did not result in any internal
injuries. There was not even a fracture of rib. Therefore they must also be
simple injuries. It is only injury No. 1 which was serious and proved
fatal. Therefore the question is whether under these circumstances common
object of the unlawful assembly was to cause the death of the deceased and
whether every member of the unlawful assembly shared the same? No doubt
Section 149 IPC is wide in its sweep but in fixing the membership of the
unlawful assembly and in inferring the common object, various circumstances
also have to be taken into consideration. Having regard to the omnibus
allegation, we think it is not safe to convict every one of them for the
offence of murder by applying Section 149 IPC. On a careful examination of
the entire prosecution case and the surrounding circumstances, we think the
common object of the unlawful assembly was only to cause grievous hurt. But
A-1 acted in his own individual manner and caused one injury with the sword
which proved fatal.”

The aforesaid discussion is in the context of evidence that emerged in the
said case wherein the Court found, as a fact, that the common object of
unlawful assembly was only to cause grievous hurt. Thus, in that case, when
common object to commit murder was not established and the Court found that
apart from the primary accused (A-1) who had inflicted a fatal blow, there
were omnibus allegations of involvement qua other accused persons, it was
not safe to convict other persons under Section 302 with the aid of Section
149 of IPC. The situation, in the present case, is altogether different.
Here the accused persons had gone to the house of the complainant fully
armed with gun and lathis. This visit was preceded by a scuffle which had
taken place just before that. One person was carrying gun whereas others
were armed with lathis. The moment they reached the house of the
complainant, who was there with his family members, appellant No.1 directed
others to attack the victims party. On this exhortation, Ram Chandra Sah
pulled his gun and shot twice at Ram Udgar Sah. Other accused persons
started assaulting Uday Chandra Sah who sustained wounds on his chest, neck
and face. They also assaulted the complainant as well his brother Uday
Chandra Sah with lathis. Complainant sustained injuries on the right side
of the head and right hand whereas Uday Chandra Sah sustained injuries on
his head and had to be carried to hospital for treatment. All these acts
and events taken together proved beyond doubt that the common object of the
unlawful assembly was not only to cause grievous hurt but to kill the
members of the opposite camp. The aforesaid judgment, therefore, does not
apply to the facts of this case.

It is trite law that the common object of the unlawful assembly has to be
inferred from the membership, the weapons used and the nature of the
injuries as well as other surrounding circumstances. Intention of members
of unlawful assembly can be gathered by nature, number and location of
injuries inflicted. In the instant case, repeated gun shots fired by Ram
Chandra Sah on the person of deceased Ram Udgar Sah, and the injuries
caused by lathis by other accused persons on the complainant and his second
brother on their heads, clearly demonstrate the objective to cause murder
of these persons. We, thus, do not find merit in this appeal which is,
accordingly, dismissed.